Matthew Reinhard was quoted regarding the U.S. Court of Appeals for the District of Columbia Circuit's ruling that documents prepared by Kellog Brown & Root (KBR) in response to a False Claims Act claim are protected by privilege, vacating an earlier district court decision. While unsurprising, the decision "is a reaffirmation of good policy and procedure already in place," Reinhard said. "In this case, [the decision] emphatically states the communication certainly is privileged so long as one of the primary purposes is providing legal advice to the company," he added. "It draws a line, certainly in US jurisprudence."
While the circuit court's latest decision provides clarity in the domestic U.S. privilege debate, Reinhard says it simultaneously represents "a further widening of the distance between the US and certainly the EU and much of the rest of the world in terms of how the attorney-client privilege is applied to internal communications between in-house counsel and employees." The discussion that will take place when European courts order disclosure of information considered privileged in the U.S. will be far from easy, Reinhard said. "I am not aware of an enforcement matter where these competing interpretations of privilege have come to a head with one another. Perhaps in EU law enforcement in civil cases where files are requested from US branches of enforcement -- I haven't seen it happen yet, but it is moving in that direction -- there's going to be a conflict whether materials need to be turned over," he said.